State v. RileyState v. Riley
SHELDON, J. The defendant, Winston Anthony Riley, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of
The following facts, which the jury reasonably could have found, are relevant to this appeal. On March 18, 2012, the defendant drove to the Mohegan Sun Casino in Montville in order to make up an $800 gambling loss from the prior day. Upon his arrival at the casino, the defendant attempted to withdraw money from an automated teller machine, but could not do so because his wife had transferred money out of their account. After returning to his car and falling asleep for a period of time, the defendant woke up and decided to commit a robbery. The defendant thus slipped a knife up the sleeve of his sweatshirt and began to walk around the parking garage.
Louise Carty, an eighty-three year old woman, was at the casino on March 18, 2012, to play the penny slots. As she was entering the elevator in the Winter Parking Garage, Carty noticed that a man, later identified as the defendant, was following her inside. After the elevator door closed, the man, whom Carty was never able to identify, “all of a sudden pull[ed] a knife out of his pocket and head[ed] toward me.” In response, Carty screamed, “No, no, no,” and shoved the man, causing him to jump away from her. Carty then grabbed the man‘s sweatshirt by the sleeve and pursued him off the elevator. The man never took or demanded money or property from Carty or verbally threatened her.
At trial, the defendant sought to defend himself by raising the defense of renunciation under
“[The Defendant]: My intentions as I approached her, as I took, like, the second or third step to her, I‘m, like, oh, my God, this could by my grandmother; what am I doing?
“[Defense Counsel]: So, when you thought that, what were you going to do about that; were you going to do anything about your thought?
“[The Defendant]: I immediately said I‘m sorry. I basically curled the knife toward myself, and I was, like, I‘m sorry, I‘m sorry. She then grabbed me.”
Carty, by contrast, testified that, although she heard the man mumble something after she shoved him, she could not make out what he said and did not hear him say that he was sorry. After she and the man exited the elevator, the man hustled away from Carty while she told others in the vicinity that the man had tried to knife her. Additional facts will be set forth as necessary.
I
The defendant first claims that the state failed to disprove beyond a reasonable doubt that he renounced his criminal purpose under
“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury‘s verdict. . . . [W]e do not sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable infer
“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.” (Internal quotation marks omitted.) State v. Taylor, 306 Conn. 426, 432, 50 A.3d 862 (2012).
In evaluating sufficiency of the evidence claims, “we must defer to the jury‘s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Patterson, 276 Conn. 452, 461, 886 A.2d 777 (2005). “It is axiomatic that evidentiary inconsistencies are for the jury to resolve, and it is within the province of the jury to believe all or only part of a witness’ testimony.” State v. Meehan, 260 Conn. 372, 381, 796 A.2d 1191 (2002).
Before evaluating the defendant‘s claim, it is first necessary to examine the defense of renunciation. At common law, renunciation was not universally recognized as a defense to the crime of attempt. P. Hoeber, “The Abandonment Defense to Criminal Attempt and Other Problems of Temporal Individuation,” 74 Cal. L. Rev. 377, 381–82 (1986); Model Penal Code and Commentaries (1985) § 5.01, comment 8, p. 356 (“[i]t was uncertain under the law prior to the drafting of the Model Code whether abandonment of a criminal effort, after the bounds of preparation had been surpassed, constituted a defense to a charge of attempt“). The Model Penal Code, however, included the defense of renunciation in its 1962 proposed official draft. P. Hoeber, supra, p. 382 and n.14.
Two main reasons have been advanced for allowing the defense of renunciation to the crime of attempt. First, an actor‘s renunciation of his criminal purpose prior to the completion of a substantive crime suggests that he did not have a firm purpose to commit the crime, and thus tends to negate his dangerousness. Model Penal Code and Commentaries, supra, § 5.01, comment 8, p. 359. Second, the availability of the defense can provide the actor with the motivation to desist from his criminal effort, “thereby diminishing the risk that the substantive crime will be committed.” Id.
Connecticut first codified renunciation as an affirmative defense to the crime of attempt in 1969, basing it in substance on the Model Penal Code.5 See
In 1971, by the passage of Public Act No. 871, our legislature changed renunciation from an affirmative defense to an ordinary defense, thereby shifting the burden to the state to disprove the defense beyond a reasonable doubt whenever it is raised at trial. See State v. Clark, 264 Conn. 723, 730, 826 A.2d 128 (2003) (“Whereas an affirmative defense requires the defendant to establish his claim by a preponderance of the evidence, a properly raised defense places the burden on the state to disprove the defendant‘s claim beyond a reasonable doubt. See
A defendant is deemed to have raised the defense of renunciation, and thus to have met his burden of going forward with respect to that defense, whenever the evidence presented at trial, if construed in the light most favorable to the defendant, is sufficient to raise a reasonable doubt in support of each essential element of the defense. See State v. Bryan, 307 Conn. 823, 834, 60 A.3d 246 (2013). The defendant, however, has no burden of proof with respect to the defense of renuncia
In order to meet its burden of proof as to the defense of renunciation, the state need only disprove one of its two essential elements beyond a reasonable doubt. It can therefore meet its burden of proof either (1) by disproving that the defendant prevented the commission of the substantive crime attempted; or (2) if the state cannot disprove that he prevented the commission of that substantive crime, by disproving that he prevented its commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
As to the first of these two methods of disproving the defense of renunciation, by disproving the “abandonment/prevention” element thereof, it is important at the outset to distinguish between the crime of attempt itself and the substantive crime that is its object. An attempt to commit a substantive crime is completed when the defendant intentionally takes a substantial step toward the completion of that substantive crime, while acting with the mental state required for the commission of that crime.
Once the substantive crime is completed, the defense of renunciation becomes unavailable to the defendant as a matter of law. Before the substantive crime is completed, however, the defense of renunciation remains available to the defendant as long as commission of the substantive crime can still be prevented. See State v. Kelly, 23 Conn. App. 160, 165–66, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991). Where, then, a defendant‘s preparatory conduct toward the commission of a substantive crime proceeds so far as to constitute the completed crime of attempt, the defendant can still avoid liability for attempt to commit the substantive crime on the basis of such preparatory conduct by preventing the commission of that crime under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
A defendant can prevent the commission of a substantive crime by abandoning his own effort to commit that crime, or if abandoning his own effort to commit that crime is insufficient to prevent its commission, by pre
As to the second method of disproving the defense of renunciation, by disproving the “complete and voluntary” element thereof,
The parties in the present case do not dispute that the defendant abandoned his effort to commit the substantive crimes of robbery and larceny against Carty. Thus, the only contested issue in this case was whether the defendant‘s abandonment of his effort to commit those crimes against Carty and the resulting prevention of their commission took place under circumstances manifesting a complete and voluntary renunciation of the defendant‘s criminal purpose.
The defendant claims that he decided not to rob Carty when he took his second or third step toward her in the elevator, but before she screamed and grabbed him. On cross-examination, the defendant denied that his change of mind resulted from Carty grappling with him
The state presented the following evidence to prove that the defendant‘s prevention of the crimes of robbery and larceny against Carty was not complete and voluntary. First, Carty testified that she screamed when she saw the defendant pull out the knife, and kept on screaming, “No, no, no.” According to Carty, she “kind of” shoved the defendant, then heard him mumble something, although later she said that she never touched the defendant.
Second, the state presented video evidence that afforded the jury a substantial basis for rejecting the defendant‘s claim as to the sequence of events here at issue. A review of the video recording shows the following. Carty entered the elevator, followed by the defendant. After the doors closed, as the defendant and Carty were standing on opposite sides of the elevator from one another, the defendant pulled a knife from his sleeve and approached Carty. The defendant then took three steps toward Carty, who did not appear to notice him until he was taking his third step, at which point she immediately raised her hands, grabbed his right hand (holding the knife) and his left wrist/forearm, and pushed him away, causing the defendant to take a step backward. The defendant and Carty briefly struggled before the defendant raised his arms in an apparent attempt to free himself from her grasp, then briefly broke free and turned away from her toward the opening elevator doors. At that point, as the defendant was slightly in front of and to the left of Carty, she grabbed a piece of his sweatshirt, near the elbow of his right sleeve, and held onto it as the defendant walked off the elevator in front of her. The surveillance video does not have sound and does not clearly show the defendant‘s or Carty‘s mouth moving. The video also does not clearly show the defendant curling his knife back toward himself before Carty raised her hands and pushed him.
Construing this evidence in the light most favorable to the state, we conclude that it was sufficient to support the jury‘s conclusion that the defendant‘s abandonment of his criminal purpose was not complete and voluntary. The jury reasonably could have concluded, based on Carty‘s testimony alone, that she screamed as soon as she saw him coming at her with the knife, and that the defendant, upon hearing her scream and feeling her resist him physically, abandoned his criminal effort to rob her under circumstances that were neither voluntary nor complete. The jury reasonably could have concluded that the defendant decided that the screaming Carty would “increase the probability of [his] detection
Considering the totality of the evidence in the light most favorable to the state, as we must, we conclude that there was ample evidence for the jury to find that the state disproved beyond a reasonable doubt that the defendant abandoned his criminal effort under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
II
The defendant next claims that “[t]he trial court erred in rejecting a critical portion of [his] requested jury instruction on [his defense of] renunciation, as the language omitted by the trial court was necessary to the jury‘s determination of whether the state disproved [his] renunciation defense beyond a reasonable doubt.” At trial, the defendant not only requested that the omitted language be included in the court‘s charge, but took exception to its exclusion therefrom. The defendant thereby preserved his claim of error for appellate review.
“A challenge to the validity of jury instructions presents a question of law over which this court has plenary review. . . . It is well settled that jury instructions are to be reviewed in their entirety. . . . [T]he test to be applied . . . is whether the charge . . . as a whole, presents the case to the jury so that no injustice will result.” (Citation omitted; internal quotation marks omitted.) State v. Brown, 118 Conn. App. 418, 428–29, 984 A.2d 86 (2009), cert. denied, 295 Conn. 901, 988 A.2d 877 (2010). A charge need not be perfect to survive a defendant‘s challenge to its correctness on appeal. “As long as [the court‘s instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 455, 10 A.3d 942 (2011). An improper instruction in a criminal case constitutes reversible error “when it is shown that it is reasonably
A defendant‘s right to present a defense is of constitutional dimension. Thus, “[w]here the legislature has created a legally recognized defense . . . [due process requires] a proper jury instruction on the elements of the defense . . . so that the jury may ascertain whether the state has met its burden of disproving it beyond a reasonable doubt.” State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). When the evidence presented at trial, construed in the light most favorable to the defendant, supports such a defense, a charge on the defense is obligatory. Id.
The language that the defendant requested as to the state‘s burden of disproving his defense of renunciation was as follows: “The defendant has no burden of proof whatsoever with respect to this defense. The state has the burden of disproving this defense beyond a reasonable doubt. In other words, the defendant is entitled to an acquittal if the state fails to disprove beyond a reasonable doubt that: [1] the defendant‘s renunciation of his criminal purpose was complete and voluntary; OR [2] that the defendant took affirmative steps and acts that served to prevent the commission of the crime attempted.” (Emphasis added.) The defendant claims error in the court‘s omission of the italicized language from its final instruction regarding the defense of renunciation. The court‘s jury instruction on the defense read in its entirety: “There has been some evidence presented with regard to the defense of renunciation of a criminal purpose. The defendant claims that he abandoned his effort to commit the crime before his actions violated the law. The statute defining this defense reads in pertinent part as follows. When the actor‘s conduct would otherwise constitute an attempt, it shall be a defense that he abandoned his effort to commit the crime, or otherwise prevented his commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. Renunciation is not voluntary if it is motivated in whole or in part by circumstances not present or apparent at the inception of the actor‘s course of conduct that increased the probability of detection or apprehension, or that make it more difficult to accomplish the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct, or to transfer the criminal effort to another, but similar, objective or victim. The defendant has no burden of proof whatsoever with respect to this defense. The state has the burden of disproving this defense beyond a reasonable doubt. In other words, the defendant is entitled to an acquittal if the state fails to disprove beyond a reasonable doubt that the defendant‘s renunciation of his criminal purpose was complete and voluntary.”
The state disputes the defendant‘s claim, noting principally that the court‘s instruction quoted accurately from the renunciation statutes, and thus properly identified both essential elements of renunciation. Furthermore, it argued that, in this case, there was no need to instruct the jury on how the defendant might “otherwise [have] prevent[ed]” the commission of the crimes here attempted, for such an instruction is only necessary when the defendant has set in motion an external agent that would have completed those substantive crimes had he not taken affirmative steps and acts to prevent that from occurring. For those reasons and others, we agree with the state that the court‘s instruction on the defense of renunciation was not deficient in the manner alleged.6
As a threshold matter, we note that the defendant‘s argument is premised on a fundamental misunderstanding of the law of renunciation and, in fact, of his own request to charge. The request to charge properly noted that the defense of renunciation has two essential elements, and that the state could meet its burden of disproving the defense by disproving either such element beyond a reasonable doubt. What that meant, as a practical matter, is that even if the state could not disprove one such essential element beyond a reasonable doubt, it still could meet its burden of disproving the defense of renunciation by disproving the other essential element beyond a reasonable doubt.
With those rules clearly stated, the request to charge did not state that the defendant was entitled to an acquittal on the charge of attempt if the state could not disprove one essential element of the defense of renunciation. Such a statement would have been legally incorrect because, to reiterate, our law makes disproof of either such essential element a fully effective means of defeating the defense whenever it is raised at trial.
Against this background, the defendant‘s claim that
A second reason why the defendant‘s challenge to the sufficiency of the court‘s instruction on the prevention element of renunciation is unavailing is that there has never been any issue in this case as to whether the defendant abandoned his effort to commit the substantive crimes that were the objects of his alleged attempt. Both the state and the defense treated the defendant‘s abandonment of his effort to commit larceny and robbery against Carty as an established fact in their closing arguments at trial. As a result, the only way in which the state could have disproved his defense of renunciation was to disprove that he abandoned his effort to commit robbery and larceny under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
Third, as the state correctly argues, the court was correct in not having identified in its instruction how the defendant, apart from abandoning his own effort to commit the substantive crimes of first degree robbery and second degree larceny, could otherwise have prevented the commission of those substantive crimes. This is so because the defendant, having acted alone throughout his foreshortened effort to commit those crimes, did not need to do anything more than abandon his own effort to commit them in order to prevent their commission. Had the defendant been working with a confederate, the abandonment of his own effort to commit the crimes of robbery and larceny might have been insufficient to prevent their commission unless he took steps to stop his confederate from committing them. Similarly, if the defendant had set in motion a force designed to complete such crimes, the abandonment of his own effort to commit them might not have been sufficient to prevent their commission without taking
Fourth and finally, as the state also argued, the court‘s instruction correctly listed both statutory elements of the defense of renunciation, thus properly informing the jury as to how, and on what basis, it must determine if the state had disproved that defense beyond a reasonable doubt. Because those instructions have not been challenged in any way other than that specified previously, we reject the defendant‘s claim of instructional error.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
A person commits the substantive crime of robbery in the first degree, as charged in this case, when “in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . (2) compelling the owner of such property . . . to deliver up the property“;
A person commits the substantive crime of larceny in the second degree, as charged in this case, when he commits a larceny and “the property . . . is taken from the person of another . . . .”
Thus, a conviction for attempted robbery requires proof beyond a reasonable doubt that the defendant, (1) while acting with intent to deprive another of property or to appropriate same to himself, (2) intentionally takes a substantial step toward the commission of the substantive crime of robbery. A conviction for attempted larceny requires proof beyond a reasonable doubt that the defendant, (1) while acting with intent to deprive another of property or to appropriate same to himself, (2) intentionally takes a substantial step toward the commission of the substantive crime of larceny.